OSHA’s New Walkaround Rule Potentially Grants Union Representatives Access to Safety Investigations

On Friday, March 29, 2024, the U.S. Occupational Safety and Health Administration (OSHA) issued a final rule, effective May 31, that permits non-employees to accompany and advise OSHA officials during workplace safety and health inspections. The new rule (the “Walkaround Rule”) will authorize workers to designate or select another employee or a non-employee to act as their representative during OSHA safety inspections.

What the New Rule Says

The Walkaround Rule modifies part of an existing standard that governs who may be authorized to join an OSHA inspector during a workplace investigation. Both an employer and its employees are entitled to designate a representative to accompany an inspector when they tour a facility or workplace. As it stood, the standard required that an employees’ designee had to be an employee of the business being investigated, unless the OSHA inspector saw good cause to designate an outside party to ensure that the inspection would be effective and thorough. The existing standard referenced examples “such as an industrial hygienist or a safety engineer,” and it was generally understood that such third parties were to be individuals with some form of expertise or credentials relevant to the inspection.

The rule makes two changes to existing OSHA regulations. First, it allows workers to bring in outside representatives to accompany OSHA inspectors. Second, the rule says the non-employee must be “reasonably necessary” to conduct an effective and thorough inspection to join an OSHA inspector. A non-employee could qualify for that status based upon a “variety of skills, knowledge, or experience that could aid” the inspection, rather than a narrow set of niche skills, such as industrial hygiene or safety engineering.

Under the new Walkaround Rule, which has not changed with respect to who an employer can designate, an OSHA inspector may permit employees to invite third parties who can “increase worker involvement in the inspection by facilitating communication between workers and OSHA.” In other words, those third parties may now include union organizers, even in non-unionized workplaces, as long as the employees can demonstrate that the designee is “reasonably necessary” to the inspection or investigation.

History of the Walkaround Rule

Under the Obama Administration, OSHA introduced a policy that broadly interpreted the existing rule in 2013 by issuing a formal interpretation letter, dated February 21, 2013. That letter addressed whether employees at a worksite without a collective bargaining agreement may authorize a union representative or community organizer to act as the employees’ representative for compliance inspections pursuant to 29 C.F.R. 1903.8(c). Several pro-management organizations challenged this policy, persuading a Texas District Court Judge to issue a temporary restraining order and leading to a court ruling that OSHA must engage in the notice and rulemaking process to codify its practice of authorizing union recruiters or other such employee designees to participate in inspections. Soon after, the Trump Administration’s OSHA withdrew the policy.

Impact on Non-Union Workplaces

While union advocates have lauded the Walkaround Rule, saying that it brings the regulation into the modern era, employers are wary of the rule’s vague description of third parties. How OSHA inspectors will approve selected representatives and how employers might challenge those decisions remains unclear. Unions historically have latched onto OSHA worksite inspections as an organizing campaign strategy, attempting to show employees their value in the safety arena. Employers are concerned that the new rule opens the door for union representatives to enter the fray again, assuming they can show that their presence is “reasonably necessary.”  

In guidance issued by OSHA in the form of Frequently Asked Questions (FAQs), the agency stressed that the purpose of a third-party representative participating in an inspection is for aiding the inspection. The agency reinforced the requirement that third-party representatives bring some additional knowledge, skills, and experience or a similar advantage to the inspection. For example, third-party representatives could assist with translation, or they could exhibit expertise with the alleged workplace hazards. The FAQs also provide that “[a]n employee representative whose conduct interferes with a fair and orderly inspection, which includes any activity not directly related to conducting an effective and thorough physical inspection of the workplace, may be denied from accompanying in the inspection.”

Finally, the guidance says there are not set requirements for how workers would determine their inspection representative and advises that any objection to a designated representative would need to be raised directly with the OSHA inspector, who retains authority for final approval for participation.

Recommendations for Employers

Despite the guidance, the Walkaround Rule remains unclear as to the employer’s role in challenging designated representatives and the OSHA inspector’s discretion in permitting such designated representatives. Generally, OSHA rules prohibit advance notice to employers of an OSHA inspection. Thus, employers and employees should not know in advance when an OSHA inspection is to occur, which should mean that a third-party may not be immediately available, allowing the employer time to discuss concerns with the OSHA inspector. (If the third-party representative arrives at the same time as the inspector, employers should note this as they may have been notified in advance of the inspection.) Nevertheless, employers must be prepared with specific questions to challenge any designated non-employee representative. The following are examples of questions to ask the OSHA inspector:

1. Was the third-party representative designated by employees?
2. What skills does the third-party representative bring to the inspection?
3. What expertise or knowledge does the third-party representative possess to aid in the inspection?
4. Why is the third-party representative necessary for the inspection?

What’s Next?

The rule will take effect on May 31, allowing pro-management organizations plenty of time to challenge the rule, which is likely. Nevertheless, employers should prepare and establish a gameplan in the event an employee designates a non-employee representative to assist with an OSHA inspection.

The rule will apply to federal OSHA inspections; however, the 27 states and other jurisdictions with custom, federally approved worker safety programs (e.g., California and Michigan) are required to enact similar requirements within six months.

Finally, if any challenges to the Walkaround Rule arise and succeed in effectuating a stay of enforcement or other delay, we will let you know.